UN-JUSTICE SYSTEM

Kelly Pedone Texas Lawyer 05-06-2003

For more than three years, Cynthia Orr has preached about the need for a statewide innocence project in Texas. With the media spotlight now on cases questioning evidence processed through crime labs in Houston and Fort Worth, she believes her voice finally will be heard.

Orr, president-elect of the Texas Criminal Defense Lawyers Association and an associate with San Antonio's Goldstein, Goldstein & Hilley, believes Texas needs a coordinated program to sift through the volumes of mail she and other criminal defense attorneys receive from prisoners who allege they were wrongly convicted. Orr takes over as president of TCDLA on June 1. The TCDLA in April requested funding for an innocence project from the Texas Court of Criminal Appeals' Judicial and Attorney Education Grant Program. (The innocence project hasn't been given an official name yet.)

TCDLA wants to be responsible for hiring two coordinators and overseeing the statewide innocence project. TCDLA wants the grant program to provide less than $50,000 to pay for the two coordinators. Those staffers would be responsible for evaluating letters received by, or on behalf of, someone who believes he has been wrongly convicted of a crime. After an initial screening process, the coordinators would forward the information to Texas law or journalism schools or to firms that would investigate the claims. If the claim has merit, the coordinators would then recruit attorneys to work on the case. "This has been a priority of mine for some time," Orr says. "Now that I am president-elect [of TCDLA] I have more of a voice to push this -- we are defense lawyers and are the most qualified to do this." Texas Court of Criminal Appeals Judge Barbara Hervey says neither she nor her colleagues have reviewed the TCDLA's funding request.

The grant program has $8 million available to help fund education programs for TCDLA, district attorneys' programs and three judicial training programs. Sharon Keller, presiding judge of the Court of Criminal Appeals, says that although she has not seen the request, she is unsure if it will fall within the parameters of the court's funding requirements for educational and training purposes. Keller recently met with Barry Scheck, a criminal law professor at Benjamin N. Cardozo School of Law in New York City, who heads an innocence project that examines only cases where DNA evidence plays a role. Keller says Scheck met with her this spring to discuss the need for a similar program in Texas. "I think they can do some good," Keller says of innocence projects. However, she declines to comment on whether there is a greater need for such a project in Texas in light of alleged problems reported at crime labs in Houston and Fort Worth. The Houston Police Department shut down its crime lab's DNA division earlier this year because an independent audit uncovered serious problems with testing procedures. The audit also revealed a leaky roof and an undertrained staff may have led to inaccurate analysis of evidence. Members of the Harris County district attorney's office have ordered retesting of all convicted felons in cases in which DNA tested by the HPD crime lab was used as evidence against them, whether in trials or in pleas.

There are more than 1,300 police offense reports with DNA involvement, says trial bureau chief Marie Munier. The district attorney's office also has recommended retesting defendants in 17 death penalty cases. Three retests are complete, and all three are consistent with the original tests, she says. Josiah Sutton, who was convicted of sexual assault, is the only test to return with conflicting results. All other retests of noncapital cases such as Sutton's as well as capital cases support the HPD lab's initial results, Munier says. The Harris County district attorney's office has come under fire from defense attorneys who believe prosecutors in that office should not investigate the crime lab's problems and say an independent investigation should be done. Houston solo Mike Ramsey says the fact that the DA's office leads the investigation instead of an independent organization underscores the need for a coordinated, independent innocence project in the state. "We need someone away from law enforcement to criticize law enforcement, and you always need a failsafe," he says. "These problems are becoming scandalous.

There was a time when we thought DNA was the gold standard in evidence. Now we're finding it's not." In addition to Houston's woes, questions arose recently with the Fort Worth Police Department crime lab where a senior forensic scientist was fired on April 26 for allegedly not following procedures. The city suspended DNA testing at the lab in October when the results of some second-opinion DNA tests done by the Tarrant County medical examiner's office conflicted with the crime lab's original results. Two calls placed to the Tarrant County medical examiner's office were not returned before press time on May 1. Philip Wischkaemper, capital assistance attorney for TCDLA, says that the need for a coordinated innocence project goes beyond any problems that may be associated with DNA testing and inaccuracies found at crime labs. However, headlines touting such problems only help TCDLA's cause, he says. "The issues with the crime lab are a hot-button issue that pushes this need to the forefront," he says. "But we have felt the need for an innocence coordinator for years. We need a program with someone in the center acting as a coordinator. Right now it's a fragmented community, and we need to bring it together." COMPETING PROGRAMS?

But Roe Wilson, chief of the Harris County district attorney's office's post-conviction writs division, questions whether an innocence project as proposed by Orr is a program the TCDLA should concern itself with overseeing. A project already exists at the University of Houston Law Center. "I don't have a problem if a school wants to implement a program as part of their curriculum, but I don't think TCDLA should do it," Wilson says. "Their organization should serve as the legislative arm of defense lawyers." Wilson also says she has concerns that such a program could go the way of the Texas Resource Center (TRC), which focused on revisiting habeas corpus and death penalty cases. Steve Hall, the TRC's administrator from 1993 to 1995, says TRC was funded through a $20 million a year budget item administered by the Administrative Office of the U.S. Courts. Federal funds helped create TRC, in existence from 1988 to 1995, and about 20 death penalty resource centers across the country. Texas was one of the only centers that did not have any state supplemental funding, Hall says. Congress decided to cut the funding, which led to the Texas Resource Center's demise, he adds.

Some supporters believe the funding was cut, in part, because of the effectiveness of the death penalty resource centers that helped recruit pro bono counsel in federal habeas death penalty cases, Hall says. "I think it is accurate to say that there were some people who did not like a vigorous defense," says Hall, now director of the StandDown Texas Project. "We received no direct funding from the state, so when Congress abolished its funding, we could no longer survive." Mike Charlton -- a board member of the Texas Defender Service, a program funded by private donations that does work similar to that formerly done by the TRC -- says TRC was "effective, and their success was part of having their funding taken away. There is a need for a statewide effort in an innocence project.

We are finding too many problems with the gathering and processing of evidence -- especially DNA -- so the more cases that can be looked at, the better," says Charlton, a Houston solo. Northwestern University in Chicago operates one of the most notable innocence projects. In 1999, law and journalism students proved four men were wrongly convicted and sent to Illinois' death row. The students' findings, along with work by other attorneys using DNA evidence to prove innocence, led to then-Illinois Gov. George Ryan placing a moratorium on executions in January 2000. Students typically are good resources for such investigative work, about a dozen advocates of innocence projects say, because they have a high enthusiasm level. Working with an innocence project also teaches students research and investigative skills necessary if they pursue a career in law or journalism. David Dow, a professor at the University of Houston Law Center and a post-conviction death penalty attorney, started an innocence project at his school in March 2000. Since then, UH law students, as well as journalism students at St. Thomas University in Houston and Lamar University in Beaumont, Texas, have reviewed more than 2,500 cases, Dow says. Two men have been released from prison partly due to the students' work -- James Byrd in Dallas and Sutton in Houston. The Sutton case is the only retest thus far showing DNA testing performed by the Houston Police Department Crime Lab was faulty. He was released from prison on March 12 after serving 4 1/2 years of a 25-year sentence for sexual assault. Dow and his students are drafting Sutton's clemency request and expect to file it this week with the Texas Board of Pardons and Paroles. "When I started this it was with my own death penalty cases," Dow says. "Now about 95 percent of what we review are nondeath penalty cases." Dow says the statewide program proposed by Orr could benefit his work, but he fears there may be some duplication of efforts.

"If [the TCDLA] creates a parallel operation it would have zero impact on us and we could end up doing duplicate work," Dow says of his program. "If it is used to put someone in our office, it would be extremely beneficial." TCDLA president Mark Daniel says he believes Orr's proposal will enhance Dow's program. "David does wonderful work, so this is not to undermine anything his program has done," Daniel says. "We receive countless requests that need to be reviewed and filtered to the people who are best to investigate further. I believe it will complement and bring a greater lever of expertise to David's work." Private donations fund the innocence project at UH. Dow offers a class each semester in which approximately 15 students are enrolled. He also carries over students from previous classes to help investigate innocence claims. Volunteers with no ties to UH also help in his program, Dow says. Dow says he has an administrative assistant and two law students who work for him full time.

What he doesn't have is a licensed attorney on board. That means anything that requires actual legal work has to be done by him. "That is where I could use the help," Dow says. "If [the grant money] puts an attorney in another city, it won't do me any good." Wischkaemper says Orr's plan could put a coordinator in Houston and another in either Austin or Lubbock, where he too works on innocence claims. But the staffers hired would not necessarily be attorneys. It may be an employee who will sift through the letters and farm them out to others to investigate. "There is just a backlog of innocence claims right now -- there are literally thousands that we need to review," he says. "We have got to be able to cut to the cases where there is actual evidence of innocence so we can use our limited resources more effectively. Some people in our prison system are factually innocent."